An unappealing appeal outcome: can you increase a disciplinary sanction on appeal?
Yes, but only if there is an express right to do so in the contract of employment or disciplinary procedure.
In McMillan v Airedale NHS Foundation Trust, M received a final written warning for misconduct, which she appealed. During the course of the appeal, it became apparent that the Trust was considering increasing the sanction to dismissal. M applied for an injunction to prevent this.
Allowing the injunction, the Court of Appeal concluded that the Trust was not entitled to increase the sanction. It noted that the Trust’s disciplinary procedure did not expressly state that an appeal could result in a more serious sanction, but neither did it expressly preclude this. However, if an employer wants the power to increase a sanction on appeal, this must be expressly set out in the contract or disciplinary procedure. Where a contract is silent on the issue, it will not be appropriate to imply such a right because:
- An employee’s right to appeal is given for their benefit, and its exercise should not leave them worse off, unless this is explicitly stated as a potential outcome.
- The ACAS Guide (which supplements the ACAS Code of Practice on Disciplinary and Grievance Procedures) states that appeals “should not result in any increase in penalty as this may deter individuals from appealing”. Whilst tribunals and courts are only obliged to consider the ACAS Code, and not the Guide, the latter was still relevant when interpreting the disciplinary procedure.
- As there was no further level of appeal within the Trust’s procedure, if a higher sanction was applied, the employee would have no right of appeal against this.
The Court acknowledged that where, for example, evidence comes out differently at an appeal and the original misconduct appears more serious than before (but there is no express right to increase the sanction) it may not always be convenient to initiate a new disciplinary process. The Court didn’t go on to provide any useful guidance on how to manage this situation in practice but if you are faced with it, your usual Brodies contact can assist in exploring options in light of the particular circumstances.
Users of Workbox, the employment team’s online HR site, can access detailed information on managing the disciplinary process in our Misconduct section. This includes FAQs on suspension, investigations, hearings, appropriate penalties, appeals and more, along with template letters for each stage of the process.
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